Cuevas (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The applicant, a Welder (First Class), had ceased employment with his original sponsor, Ferguson Corporation Pty Ltd, in March 2017. More than 60 days elapsed without him being employed by a standard business sponsor, which constituted a breach of condition 8107 of his visa. The Minister subsequently cancelled the applicant's visa under section 116(1)(b) of the Migration Act 1958 (Cth). The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa was correct. This involved two stages: first, determining whether the ground for cancellation under section 116(1)(b) was established, and second, if so, considering whether the discretion to cancel the visa should be exercised in the applicant's circumstances. The Tribunal was required to assess the applicant's compliance with visa condition 8107 and then consider all relevant circumstances in deciding whether to uphold the cancellation.

The Tribunal found that the applicant had indeed failed to comply with condition 8107(3)(b) by exceeding the 60-day period without sponsored employment, thus establishing the ground for cancellation under section 116(1)(b). However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the applicant's explanation for the employment cessation, including a downturn in the construction industry and the subsequent failure of a prospective new sponsor to lodge the necessary nomination application. Crucially, the Tribunal noted that the applicant had since secured new employment with an approved sponsor, Shermac Group Pty Ltd, in regional Western Australia, and a nomination application had been approved. The Tribunal was satisfied that the applicant was a credible witness and that his primary purpose for coming to Australia was to work as a welder, a desire he still held and for which he possessed the necessary skills.

In light of these circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.